Stuart Showalter is a child custody policy advisor to Indiana state policy makers as well as attorneys on child custody cases. For parents he offers child custody based life coaching to help them maintain control of their lives, increase their fitness as parents and manage their litigation so they can truly serve the best interest of their children. He provides this Law Blog as free opinion on various issues. Reader submissions of topics are welcomed. Send to Stuart@StuartShowalter.com

Saturday, February 4, 2012

Indiana Secretary of State Charlie White Found Guilty

After a one week proceeding jurors in the trial of Indiana Secretary of State Charlie White found him guilty on six of seven charges related to his declarations as to his place of residence.

Thursday, the fourth day of the proceedings brought to rest the prosecution's case and also, in a surprise move, the defense. The defendant, Charlie White, chose not to testify in his defense instead relying upon weakness in the State's case.

I did not watch the proceedings on Thursday which concluded witness testimony. Friday began with argument over final jury instructions. Defense attorney Carl Brizzi had an objection to a particular instruction related to voter fraud. He contended that the law required more than one act since it is written in the plural using the terms "ballots" and "applications". Judge Nation asked for caselaw on the matter to which Brizzi responded that it is simply governed by the rules of statutory construction. That because the statute is written in the plural then multiple acts are required and since two of the indictments alleged only single acts then they should be thrown out.

I can undoubtedly say that from my experience writing bills and amendments, discussions with legislators and working with the legislative attorneys to craft the appropriate language to convey the intent of the legislation that we take this very seriously. If we intend for a law to be applicable to at least one child then we use "child". If it is to apply to all children then we use "children". We clearly know the difference between singular and plural and have reasons for a preference.

Judge Nation ruled that although "the statute is written in the plural, I will find that the jury may find guilt based upon a single act." He then stated that his ruling does not rule out that Brizzi may still make that argument to the jury.

It was then onto closing arguments which began for the State of Indiana by DJ Sigler. Stigler Jr focused on the breadth of documentary evidence with conflicting dates as to where he resided. He pointed out that White had indicated the home of his former wife, Nicole, as his residence just days after completing a loan application indicate the condo he was purchasing as his home address. There were numerous other documents with dates and addresses that criss-crossed each other.

At first blush this may appear as though White knew and stated that he resided outside the district while serving on the council and that he was guilty of all the charges. There is an alternate possibility for White's actions though. Just as quantum physics tells us that we live in a world of infinite possibilities and reality does not exist until we observe it, so too may be the situation here.

One of the things that defense attorney Carl Brizzi would convey to the jury was that White's life two years ago is now being picked over with a fine tooth comb to find anything that may support a criminal charge against him. If you have ever observed a US Supreme Court nominee hearing then you are aware of the depth to which the actions from one's past will be delved into. The same is true with White House appointments. Take for example, when Bill Clinton's nominee for US Attorney General, Zoe Baird, was found to have hired two illegal aliens in the positions of nanny and chauffeur and additionally failed to properly pay withholding taxes on them. She wasn't even charged for those crimes.

THE PROSECUTION

Sigler conveyed to the jury that it was necessary to prosecute this case to ensure an orderly transfer of power of elected officials. He appealed to the jurors sense of fairness that White was not being selectively prosecuted by saying, "This case has never ever been about politics. This has been about a politician. A politician who thought he could get away with it. The reason why, no different than in the time of the Greeks or the time of the Romans, a chance for political power." He concluded those thoughts with a rhetorical question -- "If we aren't going to enforce the election law against the Secretary of the State of Indiana then who are we going to enforce it against?"

Sigler Jr then went into a synopsis of various documents and their relationship to the charges. He detailed a time-line starting with when White had divorced and quit-claim deeded the marital residence to his now ex wife Nicole. Then he lived in an apartment for sometime while attempting to negotiate the purchase of a new home which ultimately fell through. Later, he would allege, that White was living in a condo from November 2009 through February 2010 while claiming to be residing at Nicole's house. White and his current wife, Michelle, were not married until 28 May 2010.

A motive was presented in that White knew that while running for state office it would not look good if he was living in the basement of his ex-wife which "is not the correct image for a candidate for state office." Sigler stated that White was under the gun to get his own residence but at the same time couldn't afford to forfeit his position on the Fishers' Town Council. So he indicated different addresses on various forms to satisfy the scheme. Documents show that White executed a lease for the condo on 05 November 2009 and had movers scheduled for 13 November. Yet he voted in a special election on 10 November in the district where Nicole lived, claiming that as his address. Sigler stated that since White quit-claim deeded the property to Nicole that he no longer had a legal right to it. I agree with this but don't find it compelling because I could let you reside at my home without ever signing a lease or selling it to you but you could use it as your residential address.

Sigler went on to speak of the 600 pages of telephone call records that they introduced which cover over 30,000 "calls". He noted that in late 2009 the call volume at the condo significantly increased over the calls at Nicole's house. During one month 266 calls made at the condo while only 117 at Nicole's.

Then there was the mailing address supplied to his new employer. in January 2010 White listed the condo as his mailing address then which was prior to marrying Michelle who had been residing there since November 2009. It was also prior to his 22 February 2010 candidacy declaration for the office of the Indiana Secretary of State in which he indicated Nicole's home as his address.

Sigler concluded by stating there was no evidence that he ever lived at Nicole's residence. The distance between homes is seven miles. That he knew he moved outside his district. He then asked if it is reasonable to believe that a man who wanted statewide office so desperately that because of his fear of losing local office took the risk of falsifying his address. In closing he stated, "Upton Sinclair told us 'it is difficult to get a man to understand something when his paycheck relies upon not understanding it.'"

THE DEFENSE

The floor was then passed to defense attorney Carl Brizzi who came out firing. "Thomas Jefferson may be spinning in his grave to think that we are here because someone was spending the night with his girlfriend. Ever wondered about the political obsession theory. First it was he didn't want to get caught living with girlfriend, now it is didn't want to get caught living with ex-wife. All of these public documents said he lived on Broadleaf [Michelle's residence]. For someone who was trying to hide the fact that he lived in the basement of his ex-wife he didn't do a good job of it.

Brizzi reminded the jurors that no one testified that they knew where Charlie lived. Also, that he has no obligation to demonstrate where Charlie lived and that it is possible that from the evidence they just won't know. He summarized the State's case as "based upon assumption, innuendo and leaps."

He went on to explain the mortgage documents which stated that White was living at Michelle's condo -- the one White was purchasing in November 2010. Michelle and the children are living at condo since November 2009. Charlie's present address was indicated as Overview and former as on Broadleaf -- Nicole's house. Charlie has been paying rent since November. If he didn't say that then his lenders would have been concerned.

I feel that it is a rational explanation based upon the underlying reason that banks want to know this information. It is not for the purpose of rooting out potential election fraud but quite simply they want to know if 1) The property is occupied and; 2) If it is owner occupied. Lenders know, as do investors, that if a property is unoccupied or occupied by renters that it is less likely to be properly maintained and may suffer additional depreciation due to vandalism or other intentional abuse. Charlie was paying for the place, a fiance was living there and he intended to reside there was they were married.

Brizzi then took aim at the documents from White's January 2010 employer stating, "The employers' testimony was 'I took that to be what his address will be.'" Brizzi then lamented the the use of three prosecutors, detectives, witnesses flown in from all over the country just to argue about where someone sleeps.

His next attack was compelling and one that when I see a prosecutor make is decisive for me. Indictment number three accuses White of fraud against the bank for not living in the condo from February through May 2010 although in February he signed documents indicating that the condo was his current address and he would reside there within 30 or 60 days but did not. Brizzi contrasted this to the other indictments which stated that White was living in the condo from 05 November 2009 -- the signing of the lease -- through 28 May 2010 -- the marriage date.

The State of Indiana is essentially saying if you think he lived in the condo find him guilty on these six Class D felonies. If you think he didn't live in the condo find him guilty on the one Class C felony of fraud. The State does not know where White lived and has charged him in a manner that ensures a conviction either way. That is an fundamental miscarriage of justice.

Next it was time to attack the motives of the State. Sigler said this case was not about politics. But Brizzi reminded the jurors that every single one of them was asked what his or her political party affiliation was, have any contributed to a campaign or party, and have any ever worked for a candidate. He noted that Sigler even said the political affiliation of the prosecutors.

There was a political side to this prosecution though. Brizzi pointed out that the detective assigned to the case said no one came forward to accuse White of a crime. No one from the bank, not his employers, no town official, no citizen except one person. That was Greg Purvis a former candidate for Fisher's Town Council who after White had long before declared his candidacy for Indiana Secretary of State called a news conference to say that White should withdraw. But Purvis wasn't called to testify.

Brizzi seemed reasonable dismayed about the next charge; Perjury on a marriage application - "REALLY?" he exclaimed. One or the other of the applicants on a marriage license must live in that county. Brizzi stated that, "No one testified that Charlie or Michelle tricked Hamilton County government into letting them get married here."

He then moved onto the phone calls. Brizzi recalled testimony that Charlie was on the phone with Michelle asking for permission to come over to the condo. "If you live somewhere then common sense tells you that you don't have to ask for permission.", claims Brizzi. He then went on to provide some clarification about the phone records detailing the 30,000+ calls.

"We don't know which are text messages. If you are with someone you are not texting to them. They can't tell you where the defendant was at any one time. They do not, they show the tower. Mall, restaurants, I-69, all that is within that tower. It's not fair to use hits while at mall, traveling, being in the area as meaning he was at the condo. They manipulated the data." Brizzi the noted that the cell phone records were limited to the hours of 6:00pm - 8:00am and also included weekends. Brizzi's implication was that the records were tailored around the time that White may have been shopping or at local eateries with Michelle and would also pick up hits for text messages he may have been sending to Nicole.

Brizzi next attacked Indictment #5, the charge about procuring, tabulating or casting a false or fictitious ballot, which was the subject of the jury instruction argument earlier in the day. Brizzi read the indictment which made the allegation in the singular, no "S". He asked the jurors to review the way the law is written and the instructions they are given. The statute uses the plural but this is not how the indictment is written. Brizzi recalled that,"during selection we talked about an unjust application of the law. They took the "S" off the statute. This isn't about stuffing ballots, falsely registering voters. It is one man, one vote. They can't say he cast more than one vote."

As for where Charlie resided Brizzi claimed that the State has failed to demonstrate that. White moved out of the apartment in June 2009 but the jury was presented with no evidence about where he moved. Sigler says it doesn't matter, let's just look at the later dates. But Brizzi says, "I think it is important where this 'nomad, lived. The detective did not support the State's claim. He said that he could have lived on Broadleaf [Nicole's residence]." The detective interviewed eight neighbors. "Peeping Chilton, who was chasing someone down the road with a golf club, is their only evidence of where Charlie resided." claimed Brizzi.

Finally, he concluded that, "This is a textbook political prosecution. It is an abuse of prosecutorial power and discretion." Then his last words to the jurors, "They were willing to do anything to get Charlie and we wouldn't be sitting here if he wasn't Secretary of State."

PROSECUTION RESPONSE

The prosecution was then afforded the opportunity to respond which was done by John Dowd.

Dowd summarized the State's motives as not being political. "I was just informing you about that I told you our political parties to let you know that we were balanced. Brizzi is trying to make it political." Dowd claimed that there are certain crimes that don't have a particular victim such as regulatory laws, taxes, or drunk driving when there is no property damage it is the citizens as a whole. "The victim here is the 'voting system'.", he claimed.

Dowd asked the jurors to look at the exhibits and documents claiming they show the White's actions and conduct. He noted that the defendant was the Hamilton County GOP Chairman, he sat on the town council, was a candidate for Secretary of State and a trained attorney. I think this implies that he is to be held to a higher standard although the prosecution had previously claimed that this prosecution was not any different than what any common person would face who had done the same.

Dowd referred to Count III as an alternative charge. He told the jurors, "If you believe there is no evidence of where he lived then you should consider whether there was financial fraud committed." Essentially Dowd is saying if you can't find him guilty on the other six charges for living in the condo at that time then find him guilty on this one for not living in the condo at that time.

He then claimed that Brizzi's argument about the "S" on count three is ridiculous. He claimed that it doesn't matter if the statute requires multiple acts, one is enough to convict. Dowd continued with his argument and claims about what was presented as evidence. He then told the jury that the State never asked White to prove anything. Brizzi made an objection.

The trial rules do not allow a lawyer in closing to make certain claims or statements. Lawyers may not allude to matters not in evidence or to characterize the evidence other than as presented. Those acts are objectionable. In this instance Dowd made reference to having not asked White to offer a defense. Under the constitutions of the United States and the State of Indiana a defendant is presumed innocent and is not required to defend himself. The burden is always on the State to prove guilt beyond a reasonable doubt. Dowd was engaging in what is called "burden shifting" by implying that they could have asked White to defend himself and that the jury should give favourable consideration to the State for not making such a demand. Such action is objectionable because of the false impression it can leave with the jury and Brizzi rightfully objected.

Upon Brizzi's objection Dowd rose to his feet and yelled across the courtroom that, "It is rude of Brizzi to interrupt!" with an objection. Judge Nation upheld the objection.

The jury instructions were read to the jurors and then at about 2:00pm they retired to deliberate. When I left at 4:30 the jurors had still not asked any questions and were continuing to deliberate.

MY COMMENTARY

I readily admit that I am not an unbiased observer here. I long ago told Charlie that I would be there to support him. I have multiple times been falsely accused of crimes. I am the person in the state of Indiana who demanded that a felony charge be reinstated against him after it was dropped. I wanted to have my week in court to show that Boone County Prosecutor Todd Meyer and Judge Steve David had conspired against me in a politically motivated prosecution. Judge Steve David refused to allow me to have a trial and denied my Motion to Reinstate.

In 1990 I was sent to prison on a politically motivated prosecution in which two police officers both lied during their testimony and even contradicted each others' testimony. My FBI contact at the time told me prior to the initiation of the presentation of "evidence" that I had already been found guilty.

So, I am well aware of the mechanics of a politically motivated prosecution and the extremes measures that prosecutors will employ to get a conviction. In the State v Charles P White I see those mechanics at work. Detectives scouring the records of someone's life in an attempt to fit any action to a crime. Filing conflicting charges where the findings on all cannot be unanimous. Three prosecutors. Witnesses being flown in from around the country. No citizen or other entity having claimed to have been a victim. The claim that the defendant is being treated no different than any ordinary citizen.

Show me the list of people who were prosecuted for Fraud as a Class C felony for not moving into the property they purchased soon enough after the closing date. I talked to a realtor Friday evening who said that people often don't get moved-in within the time limits indicated on the documents but that the banks don't care. Just so long as they are not claiming it to be a homestead and then renting it out or leaving it empty. In this case the condo was occupied by White's fiance. How about the list of people who were prosecuted after their homes were foreclosed on over the past four years and it was discovered that they falsified their income, debts or assets. A few a brokers were prosecuted but although Congress was presented with a report on the housing debacle that referenced loan applicants falsifying their income, debts or assets as being a major contributor to the foreclosure explosion those applicants haven't been prosecuted.

As for the voting outside one's district. I have been involved in registering voters, campaigning, pole working and other election activities going back to the 1980's. I can assure you that there are many people who vote outside their district. It is common for pole workers to ask a voter if he or she still resides at the address as indicated on their voter registration. When the answer is no the voter is asked to complete a change of address form, which is readily available since this is anticipated, and then he or she votes. Never have I seen these people being taken into custody after voting and charged as White was. Think about that statute being in the plural. Do you think it was possible that the Legislature thought that people may move and just not get around to filing a change of address form but that it would be convenient to do so at the next voting opportunity and those who failed to change it then or lied to keep voting in a district in which he or she didn't reside would then be committing a crime?

To say this isn't a political prosecution is to deny reality, lie or be completely disillusioned. I think it is an absolute miscarriage of justice for Charlie to have been found guilty on any of the charges. As I had said yesterday and Brizzi pointed out to the jury, based upon the way White was charged he gets found guilty for living at the condo or guilty for not living there. So it was already known that he gets found guilty on six charges or one unless the jury does the sensible thing and acquits on all charges.

If you need assistance with a dissolution, child custody matter or criminal matter involving either then please visit my website and contact my scheduler to make an appointment to meet with me.

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About Me

As a child custody policy advisor I have written and had child custody related legislation passed into law. My counseling of lawyers and appearances as an expert witness have helped them achieve more favorable results for their clients including winning appeals, gaining parenting time, reducing conflict, and mediating agreements. Additionally I made important contributions to the amended Indiana Parenting Time Guidelines that went into effect March 2013 and am currently formulating recommendations for the Indiana Child Support Guidelines which are to be amended this year. For parents I offer child custody based life coaching to help them maintain control of their lives and increase their fitness as parents so they can truly serve the best interest of their children.